After the HOAI had to be amended in the wake of the ECJ ruling of 4 July 2019, the next bombshell from Brussels regarding minimum remuneration under the HOAI follows, this time in the form of an Opinion by ECJ Advocate General Maciej Szpunar. In this ECJ ruling, it was clarified that the minimum rates for fee agreements for planning services by architects and engineers under the HOAI violate applicable Union law, more precisely the Services Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006, and are therefore invalid (see our article in the Construction Law Ticker of 13.11.2020). As a result, the HOAI was amended, the new version of which has been in force since 1 January 2021.
The starting point for the ECJ Advocate General's Opinion is a question that was submitted for examination by the BGH as part of a preliminary ruling. The BGH wanted to know the answer as to whether a national court is obliged to disapply the national law that gives rise to the plaintiff's claim for payment in the amount of the (invalid) minimum fee limit. According to the ECJ Advocate General, the answer is clearly "yes".
In his Opinion, the ECJ Advocate General states that a national provision must first be interpreted in accordance with the Directive. Only if an interpretation in line with the directive is not possible would the court be required to leave the national (entitlement) standards unapplied.
The above-mentioned Services Directive 2006/123/EC is directly binding for EU Member States pursuant to Art. 288 (3) TFEU. It substantiates two fundamental freedoms of the internal market, including the freedom of establishment, and is not intended to harmonise service activities, but rather to specify the underlying treaty itself. Chapter III of the Services Directive ("Freedom of establishment for service providers") therefore contains explicit criteria that are sufficiently defined to concretise the freedom of establishment enshrined in the Treaty and thus apply in purely domestic matters. The conclusion from this is, on the one hand, that Chapter III of the Services Directive applies directly to the legal relationship between two persons and, on the other hand, that such national legislation is inapplicable if it violates the Services Directive. In the opinion of the ECJ Advocate General, this is the case with the present claim for payment of the minimum fee rates from an engineering contract.
As a further addition, the Opinion contains an explanation of Art. 16 of the Charter of Fundamental Rights of the EU. As an "independent" provision, this grants the individual their own legal position, from which they can defend themselves against a restriction by national legislation with the defence of unlawfulness of the restriction of liberty pursuant to Art. 52 para. 1 of the EU Charter. The ECJ Advocate General is convinced that the ECJ ruling of 4 July 2019 is incompatible with the HOAI minimum remuneration level and the right to freely determine prices. This means that the national law may not be applied in this respect.
As the judges of the ECJ are regularly guided by the Opinions of the ECJ Advocates General, these carry great weight. For German practice, this means that even for contracts concluded before 1 January 2021, there is no entitlement to a fee in the amount of the minimum remuneration.
If you have any questions about the final applications and the resulting consequences for your building project, please do not hesitate to contact us.
Your Breyer Attorneys Team
